From 'Wanton Mayhem' to 'Chaos and Cacophony'

The Telecommunication Decency Act has been repealed

Just passed in the Congress the Telecommunication Act from 1996 on the 12.6.96 has been ruled as unconstitional. Esther Dyson, EEF Chairman, said, that this has been "a day for individual citizens, for families, and for public and private organizations online to celebrate." The lenghty opinions of Judges Sloviter, Buckwalter, and Dalzell from the District Court of Pennsylvania make it plain that the reactionary mood of congress is directly at odds with the constitutionality of free speech.

In early February, the US senate passed an amendment to the Telecommunications Act of 1996 called The Communications Decency Act. It effectively attempted to regulate communications activity and policy across the international spectrum of the internet. Under the repugnant veil of the pornographic, (one of the only remaining sources of solidarity among the right) the CDA criminalized the transmission of images and language dealing so broadly with so-called obsenity, that it immediately created tidal fears of huge fines, imprisonment, and costly litigation for virtually any provider of information suspected of problems.

This occurred in an environment in which the government was reeling in the moral morass of the republican revolution, with its faux majority ethics, family values platitudes and cliche freedoms. Indeed the Chairman of the Committee on Commerce, Science, and Transportation, Larry Presler, received a letter from a coalition of the right (the Christian Coalition, American Family Association, Eagle Forum, Morality in Media, and others including Edwin Meese III who was responsible for the Meese Commission extravaganza on Pornography under the Reagan Administration) outlining even deeper penalities and more stringent enforcement then congress proposed. Targeting trafficers, the coalition's protectionist ideology is sustained by the not so veiled repressive tactics that shield youth even from reasoned material dealing with AIDS, sexually transmitted disease, and ultimately with an international politics that undermines simplistic assumptions about the moral dominance of American ideology. The failure to grasp the crucial distinction between representation and behavior has galvanized the right.

Not so long ago the Senator from New York, Al Damato, tore up a catalogue of the work of Andre Serrano in front of the congress and the C-Span cameras that broadcast congressional activities. The willful destruction of images and books is, at best, both a perverse misunderstanding of representation and, simultaneously, a persuasive signifier of the continuing political power inherent in communication. So against the wanton mayhem of unrestricted communication the CDA is proposed to insure that there is a clearcut relationship established between free speech and speech that is unregulated! And already the privatization of social space (in which the constitution is only marginally enforceable!) is established. Private property is indeed more sacrosanct than constitutional rights! No wonder the network seems so dangerous!

Yet the outcry concerning the regulation of the network did not just emerge from the right, but from the growing libertarians as well. This was, of course, amid the increasing awareness of anti-government militia movements, signaled by the Oklahoma Bombing, the recent publication of The Turner Diaries, widely perceived as a handbook of neo-fascist tactics, the reception of the manifesto by the unabomber Industrial Society and Its Future, the unrepentent up-country mentality of third wave theory in the EFF's Magna Carta for the Information Age, and most recently in the Montana group called the Freemen.

Declaring themselves independent of constitutional law, the Freemen created a sovereign entity subject to self-regulation, self-governance, and autonomy. Enveloped in autarchic illusions, they claimed autonomy while reeking havoc on the local community by sustaining liberty at the expense of their creditors (not a bad metaphor for america generally!). They even claimed that their ad hoc judicial system could settle their conflict with the FBI, the Department of Justice, and the Internal Revenue Service. The final standoff left the Freeman surrounded by hundreds of FBI agents who slowly strangled their autonomy by cutting off water, electricity, and, in a final blow, jamming their cellular communications.

As a specific response to the CDA, but sharing an affinty with a deeply republican agenda came the A Declaration of Independence of Cyberspace, from the keyboard of self-proclaimed cognitive dissident John Perry Barlow. Distributed widely on the network (and soundly criticized in a number of forums ), the declaration is rife with the kind of counterproductive autonomy that will only lead to powerful opposition.

"Sovereignity," an "act of nature, the "social contract," inapplicable concepts of property, liberation from economy, the assumption of the "Mind" - the document is encumbered with almost indefensible contradictions and willful exaggerations.

Surely Barlow, of all corporate cybercowboys, knows full well that the network is haunted by the specters of the command and control strategies of the cold war, the evolving surveillance techniques of cgi scripting, the extraordinary incorporation of web space in the form of the kind of logos (it both senses of the term!) that thrives on redundancy and ubiquity. In this sense the triumph of the saturation market could be understood as complete, if it weren't for the pesky issues of the third world, the economic demand of incessant equipment upgrades, the unbilical economic requirements of the telecoms, to insure that this act of nature can evolve in an ecosystem free from those selfish memes of corporate culture.

Moreover, the presumptions of self-governance represented by the Freeman (as an extreme) have also been successfully defeated by the Supreme Court in a case that involved the regional legislation of the state of Colorado which restricted the activities of gays and lesbians. The Court struck down this kind of discriminatory legislation. Yet this kind of self-rule is precisely what Barlow defends in the catastrophically naive assumption that, given the opportunity, we will 'all just get along.' But just a glance at the daily paper, no less even a cursory sense of history, should easily reveal that the new age will be no less rapacious than its predecessors. As Armand Mattelart wrote about the developing media in Chile in the 1970s: "In order to camouflage the counter-revolutionary function which it has assigned to communications technology ... imperialism has elevated the mass media to the status of revolutionary agents, the modern phenomenon of communications to that of revolution itself."

Indeed a recent Rand Corporation (a military think tank) document, CyberWar is Coming, assessed the utilization of networks to coordinate and develop political strategy. It's author, David Ronfeldt wrote: "Institutions can be defeated by networks, and it may take networks to counter networks."

Classic cold war solipsism, but clearly the underlying fear of legislation aimed at taming autonomy. A second document, from the Institute for National Strategic Studies, by Martin Libicki, titled The Mesh and the Net. Speculations on Armed Conflict in a Time of Free Silicon, also resounds with telephobic fascination: "Just as the political motivation for developing military technology has declined, the information technology fungible to conflict is about to accelerate....Realms of conflict where machines reign supreme: space, air, sea, deserts, and plains (roughly in that order) will be first in which the large and complex are brought down by the small and the many."

Hence, the frenzy to legislate cyberspace can be thought of as much more than the monitoring of those dirty little sins of transmission dispensing smut all over the network, but as the dual realization of the fragility of the network as a stable/secure system and as a measure of the network as a site of cultural realpolitik and realeconomics, in spite of the uninspired pseudo federalists like Barlow! This just isn't the time to return to the founding fathers for anything other than revolutionary inspiration. Even then it was an issue of representation that stoked the fires of secession - and brought the troops.

But the metaphor aside, the issues of the liberation of the cybersphere will require the kind of electronic civil disobedience proposed by the Critical Art Ensemble more than they will the kind of born-again constitutionalism of the 18th century. Corporate tyranny indeed will prove a far more organized force than the obedient armies of the empire. Afterall, this is as much an international economic conflict as it is a civil one in which the stakes extend from the inalienable right to communicate to the constitution of the network as the central nervous system of an already shaky stability.

The constitutionality of the Communications Decency Act has already been successfully challenged by a coalition of organizations.

"The Defendents in these actions are Janet Reno, the Attorney General of the United States, and the United States Department of Justice." reads the initial section of the opinion in the civil action. It continues, "For convenience, we will refer to these defendants as the Government."

The extended comments that follow outline the ligitigation before the U. S. District Court no. 96-963 in the matter of a preliminary injunction of the CDA as part of the Telecommunications Act of 1996. The first sections give a cursory history of the network and cyberspace that was presented as testimony. They cover essentials such as the emergence of the network from its origins in ARPA and then DARPA initiatives, differences between Usenet, FTP, IRC, telnet, and WWWprotocols, the basics of web publishing, research and search mechanisms, the establishment of PICS (Platform for Internet Content Selection, an implementation of the World Wide Web Consortium to screen material), and the scope of filtering software (Surfwatch, Net Nanny, Parental Guidance...).

It continues with an outline of representative web material from Human Rights Watch, the National Writers Union, Stop Prison Rape, Inc., Critical Path AIDS Project, and others. "It is no exaggeration", they write, "to conclude that the content on the Internet is as diverse as human thought", and that "the Internet is a unique and wholly new medium of worldwide human communication."

This material precedes the court's Conclusions of Law on the challenge to the CDA. The legal matter was ended in a terse remark that concluded: "The motions for preliminary injunction will therefore be granted." This was followed by the opinions of the three Judge panel.

The lenghty opinions of Judges Sloviter, Buckwalter, and Dalzell make it plain that the reactionary mood of congress is directly at odds with the constitutionality of free speech. Citing case law and precedents, all three offer a cogent reading of the link between legislative process and constitutional legal judgement.

The CDA is patently a government-imposed content-based restriction on speech, and the speech at issue, whether denominated 'indecent' or 'patently offensive', is entitled to constitutional protection....It would appear that the extent of the abridgement of the protected speech of adults that it has been shown the CDA would effect is too intrusive to be outweighed by the government's asserted interest...(The Government) suggests that concerns expressed by the plaintiffs and the questions posed by the court reflect an exaggerated supposition of how it would apply the law, and that we should, in effect, trust the Department of Justice to limit the CDA's application in a reasonable fashion that would avoid prosecution for placing on the Internet works of serious literary or artistic merit. That would require a broad trust indeed from a generation of judges not far removed from the attacks on James Joyce's Ulysses as obscene...But the bottom line is that the First Amendment should not be interpreted to require us to entrust the protection it affords to the judgement of prosecutors.

Chief Justice Sloviter

Judge Buckwalter argued through the hazy issues of "obsenity" "indecency" and "community standards" (a measure of the relativity of the definition of obsenity).

"The government thus contends that plaintiffs' fears of prosecution for publishing material about matters of health, art, literature or civil liberties are exaggerated and unjustified. The government's argument raises two issues. First is the question of which 'community standards' apply to cyberspace, under the CDA, and second is the proposition that citizens should should simply rely on prosecutors to apply the statute constitutionally. Are the contemporary community standards to be applied those of the vast world of cyberspace?... Such unfettered discretion to prosecutors, however, is precisely what due process does not allow. ... And we cannot overlook the vagaries of politics. What may be, figuratively speaking, one administration's pen may be another's sword."

The phrases in throughout the opinion squarely suggest that the entire legislative premise had little merit: "unconstitutional on their face", "facial unconstitutionality", "invalid".

Judge Dalzell indeed concludes "that the disruptive effect of the CDA on Internet communication, as well as the CDA's broad reach into protected speech, not only render the Act unconstitutional but would render unconstitutional any regulation of protected speech on this medium....I conclude that the CDA is unconstitutional and that the First Amendment denies congress the power to regulate protected speech on the Internet."

As the most participatory form of mass speech yet developed, the Internet deserves the highest protection from governmental intrusion. True it is that many find some of the speech on the Internet to be offensive, and amid the din of cyberspace many hear discordant voices that they regard as indecent. The absence of governmental regulation of Internet content has unquestionably produced a kind of chaos but as one of the plaintiffs' experts put it with such resonance at the hearing. 'What achieved success was the very chaos that the internet is. The strength of the Internet is that chaos.' Just as the strenght if the Internet is chaos, so the strength of our liberty depends on the chaos and cacophony of the unfettered speech the First Amendment protects.

Judge Dalzell

Of course the facile to attempt in any way to regulate the international system of the network was doomed from the start. Remember too that this decision was a "preliminary injunction," one can only assume that revised legislation will follow.

Yet the emphatic rejection by the US District Court, will have fascinating ramifications for more than the maintainence of "unprotected" speech. Under the banner of ubiquituous cacophony will be marching the new right, the born-again Freemen, the libertarian CEO's, and a host of tele-enterprises drooling to provide some profitability from that good old First Amendment.